Couldthirst

— The plaintiff is the owner and in the use and occupation of a tract of land through which Susan river flows, and the defendant is the owner in possession of another tract higher up on the same stream.

The object of the action is to abate as nuisances certain dams and ditches constructed by the defendant, which, it is alleged, had,the effect to divert the water from the plaintiff’s premises, and also to recover damages occasioned by the diversion. The issues made by the pleadings were submitted to a jury, which returned a verdict in favor of the plaintiff for the sum of two hundred and twenty-five dollars, for which *797 amount and for costs judgment was entered for the plaintiff; but the judgment is silent in respect to abating the alleged nuisance. The defendant appeals from the judgment and from the order denying his motion for a new trial. The grounds of error relied upon are, that the court erred, first, in awarding costs to the plaintiff; second, 'in misdirecting the jury; third, in denying the motion for a new trial. The first point is not tenable. The action is in equity to abate a nuisance, and in such cases the allowance of costs is in the discretion of the court, and…